Below are the most frequently asked questions we’ve received related to COVID-19. We will be updating this FAQ in the coming days, weeks, and months.
We are reopening after business closure due to COVID-19. Can we bring some employees back, but not others?
Yes. If you are recalling some positions, but not others, you should document the business reasons why only those positions were recalled. If you are recalling some employees in a certain position, but not everyone in that position, you should document the objective, job-related criteria you used to decide which employees to bring back. Seniority or previous job performance, for example, would be acceptable criteria and relatively easy to defend if you are ever challenged.
Some of our employees have said they don’t feel safe returning to work. Can we just permanently replace them?
Questions about Employee Safety
Can employees refuse to travel to areas considered safe from COVID-19?
You can require employees to travel as long as you meet your general duty under OSHA to provide a workplace (including any travel location) that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
To ensure that you are not subjecting an employee to excessive risk, check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country where the employee is traveling.
Perhaps more important than whether you can force an employee to travel is whether you should. Requiring a fearful employee to travel will erode trust and confidence and likely cause them significant anxiety. Consider video calls or videoconferencing as an (inexpensive!) alternative to traveling for the next few weeks or months.
Also keep in mind that employees who are immunocompromised or have other relevant disabilities may be entitled to an accommodation (such as not traveling, given current conditions) under the ADA.
Can we send employees home if they are symptomatic?
Yes. The Centers for Disease Control and Prevention (CDC) has advised employers that employees who appear to have symptoms of COVID-19 (e.g., cough, shortness of breath) should be separated from other employees and sent home immediately. If the employee feels well enough to work, consider whether they can effectively telecommute.
Note: Non-exempt employees may be entitled to a few extra hours of pay if you’re in a state with reporting time pay, but this cost will be well worth it to maintain the safety of the workplace.
What if my employee discloses that their family member or roommate has COVID-19?
Our recommendation is to follow guidance from the Centers for Disease Control and Prevention (CDC). Employers should ask employees who live with someone confirmed to have COVID-19 to notify a designated HR representative or their supervisor as soon as possible. The employer and employee should then refer to CDC guidance to assess risk and determine next steps—see Tables 1 and 2 in the CDC’s Interim US Guidance for Risk Assessment and Public Health Management.
Given COVID-19, if an employee is out of the office due to sickness, can we ask them about their symptoms?
Yes, but there’s a right way to do it and a wrong way to do it. In most circumstances, employers shouldn’t ask about an employee’s symptoms, as that could be construed as a disability-related inquiry. Under the circumstances, however—and in line with an employer’s responsibility to provide a safe workplace—we recommend asking specifically about the symptoms of COVID-19 and making it clear that this is the extent of the information you’re looking for.
Here’s a suggested communication: “Thank you for staying home while sick. In the interest of keeping all employees as safe as possible, we’d like to know if you are having any of the symptoms of COVID-19. Are you experiencing a fever, cough, and/or shortness of breath?”
Remember that medical information must be kept confidential as required by the ADA. If the employee does reveal that they have symptoms of COVID-19, or has a confirmed case, you should see the CDC’s Interim Guidance to determine next steps. Tables 1 and 2 will help you assess risk and determine what steps, if any, should be taken.
What should we do if an employee says their symptoms are not related to COVID-19?
This is a tough situation. The Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control and Prevention (CDC) advise employers to send employees home when they have COVID-19 symptoms (fever, cough, shortness of breath). Employees should not return until they are symptom free for at least 24 hours without symptom-altering medication (e.g., Tylenol, cough suppressants). The CDC is asking employers not to request a doctor’s note because of the current strain on our healthcare system due to the pandemic.
If an employee claims that their symptoms are attributed to another cause (e.g., allergies, asthma), the most risk-adverse response would be to send employees home when they have COVID-19 symptoms, with pay. We understand that providing paid leave for all employees is not feasible for every business, but paid leave will incentivize employees to be honest and help you keep your workplace safe.
The CDC has a risk assessment tool available here, which might be helpful. We would also note that, based on news reports, some people have tested positive for COVID-19 without any known exposure.
Is it safe for my employees to keep working? How do I decide whether to keep employees working or not?
Ultimately each company will need to determine how it will fulfill its duty to provide a safe workplace to its employees. It’s very important to pay attention to federal, state, and local authorities to see if they are rolling out specific guidance or prohibitions that you need to be aware of. For example, some locations have issued an order for individuals to “shelter in place,” which drastically limits what workplaces can remain open and provides some guidance for those who can remain working. We have created a guide with links to government COVID-19 resources that can be downloaded here.
COVID-19 is a breaking issue, so guidance has been changing from day to day and region to region. We recommending keeping up with the latest information on the Centers for Disease Control (CDC) Coronavirus home page, related pages on that site, and your local health department for the most up to date guidance for your region and operations.
Questions about Employees Working from Home
Can we require or allow certain groups of employees, but not others, to work from home?
Yes. Employers may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. Employers should be able to support the business justification for allowing or requiring certain groups to telecommute.
How do I make a telecommuting policy?
Although some employers will be comfortable sending everyone home with their laptop and
saying, go forth and be productive, most will want to be a little more specific. A good telecommuting policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses. Make sure your employees fill out a remote employee agreement.
For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime. That said, you should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it’s a good practice to cover such costs even if it’s not required by law.
Questions about Layoffs and Furloughs
What’s the difference between a furlough and a layoff?
First, you should note that the language used when sending employees home for a period of time is less important than communicating your actual intent. Since temporary layoffs and furloughs are only used regularly in certain industries (usually seasonal), you should not assume that employees will know what they mean. Be sure to communicate your plans for the future, even if they feel quite uncertain or are only short-term.
A furlough continues employment, but reduces scheduled hours or requires a period of unpaid leave. The thought process is that having all employees incur a bit of hardship is better than some losing their jobs completely. For example, a company may reduce hours to 20 per week for a period of time as a cost-saving measure, or they may place everyone on a two-week unpaid leave. This is typically not considered termination; however, you may still need to provide certain notices to employees about the change in the relationship, and they would likely still be eligible for unemployment.
If the entire company won’t be furloughed, but only certain employees, it is important to be able to show that staff selection is not being done for a discriminatory reason. You’ll want to document the non-discriminatory business reasons that support the decision to furlough certain employees and not others, such as those that perform essential services.
GET YOUR FREE NOTICE OF FURLOUGH LETTER HERE
A layoff involves terminating employment during a period when no work is available. This may be temporary or permanent. If you close down completely, but you intend to reopen in the relatively near future or have an expected reopening date—at which time you will rehire an employee, or all employees—this would be considered a temporary layoff. Temporary layoffs are appropriate for relatively short-term slowdowns or closures. A layoff is generally considered permanent if there are no plans to rehire the employee or employees because the slowdown or closure is expected to be lengthy or permanent.
Pay for Exempt Employees (those not entitled to overtime)
Exempt employees do not have to be paid if they do no work at all for an entire workweek. However, if work is not available for a partial week for an exempt employee, they must be paid their full salary for that week, regardless of the fact that they have done less work. If the point is to save money (and it usually is), it’s best to ensure that the layoff covers the company’s established 7-day workweek for exempt employees. Make it very clear to exempt employees that they should do absolutely no work during any week you’re shut down. If exempt employees do any work during that time, they will need to be paid their normal weekly salary.
Pay for Non-Exempt Employees (those entitled to overtime)
Non-exempt employees only need to be paid for actual hours worked, so single day or partial-week furloughs can be applied to them without worrying about pay implications.
We recommend that you engage in open communication with the affected employees before and during the furlough or temporary layoff period.
Questions about Pay
If we choose to close temporarily, do we need to pay employees?
It depends on the employee’s classification.
Non-exempt employees only need to be paid only for actual hours worked. For these employees, you may:
- Pay the employee for the time, even though they did not work;
- Require they take the time off unpaid;
- Require they use any available vacation time or PTO; or
- Allow employees to choose between taking an unpaid day or using vacation or PTO.
All four options are compliant with state and federal law. We generally recommend option 4—allowing but not requiring employees to use vacation time or PTO. If your office is required to close by health authorities and your state has a sick leave law, employees may be able to use accrued paid sick leave during the closure.
Exempt employees must be paid their regular salary unless the office is closed for an entire workweek and they do no work at all from home. You can, however, require them to use accrued vacation or PTO during a closure if you have a policy that indicates you will do so, or if this has been your past practice. When it comes to accrued vacation or PTO, it is safest to give employees advance notice if there are situations where you will use their accrued hours whether they like it or not.
This video covers all pay requirements for employers during the Coronavirus.
Can we reduce pay because of economic slowdown due to COVID-19?
You can reduce an employee’s rate of pay based on business or economic slowdown, provided that this is not done retroactively. For instance, if you give employees notice that their pay will change on the 10th, and your payroll period runs from the 1st through the 15th, make sure that their next check still reflects the higher rate of pay for the first 9 days of the payroll period.
Non-exempt employees (those entitled to overtime)
A non-exempt employee’s new rate of pay must still meet the applicable federal, state, or local minimum wage. Employees must be given notice of the change at the time of the change, or before. This gives them the ability to stop working if they don’t agree with the new rate of pay and can help prevent a wage claim.
Exempt employees (those not entitled to overtime)
An exempt employee’s new salary must still be at or above the federal or state minimum for exempt employees. The federal minimum salary is $684 per week. Several states have weekly minimums that are higher than that (California and New York, for instance, are in the $1,000 per week range). The minimum may not be prorated based on hours worked.
Exempt employee reclassification
If an exempt employee has so little work to do that it does not make sense to pay them the federal or state minimum (or you simply cannot afford to), they can be reclassified as non-exempt and be paid by the hour instead. This must not be done on a very short-term basis. Although there are no hard and fast rules about how long you can reclassify someone, we would recommend not changing their classification unless you expect the slowdown to last for more than three weeks. Changing them back and forth frequently could cause you to lose their exemption retroactively and potentially owe years of overtime.
Employees with contracts or CBAs
If employees have employment contracts or are subject to collective bargaining agreements, you should consult with an attorney before makes any changes to pay.
Questions about Leaves of Absence
How are we supposed to pay for the sick leave and FMLA leave mandated by the Families First Coronavirus Response Act?
On Friday, March 20, the U.S. Treasury, IRS, and U.S. Department of Labor announced their plans for making the paid leave provisions in the Families First Coronavirus Response Act (FFCRA) less burdensome for small businesses. Key points include:
- To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.
- The Department of Labor will release “simple and clear” criteria for businesses with fewer than 50 employees to apply for exemptions from the leave provisions related to school and childcare closures; and
- There will be a 30-day non-enforcement period for businesses making a reasonable effort.
We know that for many of our clients, business slowdowns related to the spread of COVID-19 have made it hard to imagine how they could bear any additional expenses. We encourage anyone with these concerns to read the linked announcement carefully.
The full announcement can be found here: Treasury, IRS, and Labor Announcement on FFCRA Implementation.
Questions about Unemployment
If we close temporarily, will employees be able to file for unemployment insurance?
Depending on the length of the closure, employees may be able to file for unemployment insurance. Waiting periods range from 1-3 weeks and are determined by state law. Be prepared to respond to requests for verification or information from the state UI department if you close for longer than the mandatory waiting period.